Round 5 of the Financial Services Royal Commission commenced on 6 August 2018 for two weeks with a focus on superannuation. The objectives of this round are summarised here. We are presenting these highlights as direct dialogue to allow readers to make their own judgments.
A week after the close of Round 5 hearing, the Commission issued a 200-page Closing Submission which identifies potential systemic breaches of laws.
Among the many witnesses who gave evidence, we have selected examples to illustrate important points, from NAB/MLC, AustralianSuper, IOOF, Hostplus, Colonial First State, ANZ and APRA. Senior Counsel Assisting the Commission was Michael Hodge (MH).
Highlights of week one
Paul Carter (PC), Executive General Manager within NAB’s Wealth Division was interrogated with respect to payment of fees for services not rendered.
MH: … it can be agreed that an amount will be debited on a regular basis from the employee’s superannuation balance in order to pay the adviser for personal advice?
MH: And that’s what is referred to as an adviser service fee (ASF)?
MH: Okay. And if we just pause on that for a moment. Whilst you were the Executive General Manager for the superannuation business, was there a programme for actively monitoring the provision of advice in exchange for the ASF to members of the NAB super funds?
PC: Not to the extent it was required.
MH: And in the way of these things, they would be paid the same amount and the member would be charged the same amount whether they actually provided the service or were just available to provide the service?
Carter was also queried about why consumers were not advised of their ability to dial down adviser fees by simply electing to do so.
MH: Okay. And on the basis that the adviser was available to provide the service, MLC would keep deducting the 0.44% from the member’s MKPS product. Is that right?
MH: I understand they could call up and say, “I don’t want to pay a fee any more”, but if they don’t do that, then originally MLC and later NULIS will keep paying the money over to the adviser?
MH: But there’s no requirement that there be an agreement between the adviser and the member in order for that to occur?
MH: And how is it, without that sort of agreement that MLC or NULIS could be satisfied that the payment of the fee was in the best interests of the member?
By day two, Hodge was not mincing his words.
MH: Can I put this to you very bluntly, and we will go through the documents. What you did was to systematically look for any way to avoid having to refund all of the money to customers?
PC: I disagree.
MH: And that is why there is this idea [which Hodge revealed through the documents] that somehow you will find some other service that can be said to have been provided in exchange for the money?
PC: I disagree.
An exasperated Hodge kept at it.
MH: Do you recall that from May you were engaged in the exercise of trying to figure out how NAB could keep the money, rather than refund it?
Carter never admitted to deliberate wrongdoing except the failure to do the right thing.
MH: Did you ever think to yourself, “This is the wrong way to think about the situation, to be trying to identify services that we can say justify keeping the plan service fees”?
When Hodge questioned Nicole Smith (NS), a director of NULIS (NAB’s superannuation trustee) from 1 October 2009 to 30 June 2018, the leading questions came a lot earlier.
MH: You know, don’t you, about the resistance that NULIS, through the Wealth division, has put up to remediation in various respects?
NS: I would not say that NULIS has ever put up resistance to remediation.
MH: And can I suggest to you that the reason that the trustee did not do that was because it simply could not manage the conflict of interests that exist within – as between the NAB Wealth business and the trustee?
NS: No. I wouldn’t agree that that is the reason.
MH: As you know, commission-based remuneration structures are opaque, lack any corresponding customer service obligation and are not generally understood by customers. Is that a view you share?
NS: I think that’s a fair assessment.
Issues relating to the use of member funds for marketing were addressed when Ian Silk (IS), CEO AustralianSuper, took the stand.
MH: And what’s the logic behind saying there’s a free newspaper – free online newspaper that’s being distributed to members and that will, therefore, lead to members staying with the fund?
IS: So we have – in terms of a strategy to retain as many members as possible, we have a multi-pronged approach, more than a dozen particular activities that are directed to that objective, and each of them are directed to achieving one of two, preferably both, objectives.
MH: Does AustralianSuper have a view as to whether it can use the fees that it collects to push a policy position in relation to superannuation?
IS: Absolutely. We believe we can use member fees to advocate for policies that we believe are to the benefit of the fund’s members.
MH: Why isn’t it the case that AustralianSuper couldn’t say, “Well, we’re not going to spend $2 million acquiring The New Daily, and instead we’re going to lower the administration fee.”
MH: Was [it] originally intended to be a voice also in favour of industry funds?
IS: Where the facts warrant that, and we say in most cases the facts do warrant that.
MH: How does that fit with editorial independence?
Ian Silk defended the ‘fox and the henhouse’ advertisement paid for using member funds.
IS: The proposal was to essentially strip superannuation from the industrial system and allow employers the unfettered right to choose the default fund that would apply at their workplace, and in doing so, create the likelihood, based on research that had been undertaken, that retail wealth management organisations, in particular the banks, would seek to leverage their business relationship with employers with a view to influencing them to choose, in the case of the banks, a bank-owned fund as the default fund to apply to the workplace.
MH: But the legislative change would be to remove a provision for superannuation from industrial awards and enterprise agreements?
Chris Kelaher (CK), Managing Director of IOOF, was examined about the dual structure (wherein the trustee and the manager of the fund are the same entity).
MH: And APRA has been insisting that – or has said that its minimum requirements are now that the dual structure, that is, that IIML is both the registered entity for the responsible entity for the managed investment schemes and also the RSE licensee be dissolved?
CK: Yes, that’s their aspiration, yes.
Kelaher failed to adequately defend why, when over-distribution occurred to the detriment of members, new members were not compensated promptly, neither were all members informed promptly.
MH: And the issue that that is getting at is that the problem with what Questor was doing by reducing the distribution was that new members who were joining the CMT were being detrimentally affected?
MH: And they were not receiving what they were contractually entitled to receive?
MH: What this paper is explicitly recording is that it was intended to wait until the end of the three-year period of under-distributing before doing the assessment of the impact on members and proposed compensation. Do you agree?
MH: Did it concern you that it was only because of a whistleblower notification that IOOF was now going to take steps to bring forward undertaking this assessment of compensation and the effect on members?
CK: I don’t accept that it was the whistleblower that triggered the action.
By the end of the week, the Commission had covered many of its objectives despite the extended time spent with NAB and NULIS on trustee duties.
Highlights of week two
On the first day of the second week, the Commission asked Andrew Hagger (AH), Chief Customer Officer, Consumer Banking and Wealth, to return to give evidence. In total, NAB would give 20 hours of evidence over five days, versus the second-placed CBA at 6 hours.
MH: What I want to suggest to you is this: there is no reason why the trustee would want to do anything other than fully remediate its members?
AH: I don’t necessarily – well, I don’t agree with that proposition.
MH: What reason can you think of for why the trustee, acting in the best interests of its members, would not want to fully remediate them?
AH: Well, the trustee has a duty to work through what the appropriate remediation methodology is. Otherwise, if you took what you just said to its extreme conclusion, the trustee would never take any money from – accept any money from members. Or any money it ever received, it would give back.
MH: Mr Hagger, in this case, the issue was, on its face, quite simple, wasn’t it? Let me put these things to you?
AH: It certainly was not simple, Mr Hodge.
MH: You didn’t make it simple. Let’s deal with why that was?
AH: No. No, it’s not anything to do with me, Mr Hodge. It was not a simple matter.
And on it went for hours, with Michael Hodge trying to prove NAB had delayed telling ASIC the correct remediation amount, while Andrew Hagger argued he had been open with ASIC.
David Elia (DE) is CEO of Hostplus, and he started by advising that his super fund has about 1.1 million members with an average balance of about $30,000. But then we heard some of the reality of engagement and excess super fund policies when members come from hospitality and tourism.
MH: Okay. And so we see there that as at 30 June 2017, 469,659 member accounts had balances that were $6000 or less? And that figure represents around half of the total as at that time, roughly half?
DE: At that time, yes, just under 50% of the membership. That is correct.
MH: Thank you, Mr Elia. And the second table on page 6, that shows the number of accounts that are deemed inactive?
DE: Yes. So inactive as defined within the context of a member hasn’t received a contribution over a 12-month period.
MH: And we see there that 296,898 accounts are inactive. That’s at the end of June last year?
That’s three-quarters of members either inactive or with balances less than $6,000. No wonder there’s an engagement and education problem in superannuation. Hostplus also has high turnover:
DE: We had approximately 200,000 new members join the fund over the course of the financial year ending 30 June 2018. For the financial year ending 30 June 2017, we had approximately 180,000 new members. But we then on average lose about 100,000 members, 80 to 100,000 members per year. So on balance, the growth of the fund has largely been net about 100,000, year on year.
Colonial First State
Superannuation funds have been required by law (Section 29WA of the SIS Act) to direct default contributions (where the employee has not made an investment selection) into a complying MySuper product since 1 January 2014. Colonial First State’s Linda Elkins (LE) was asked by Michael Hodge why CFS had been in breach of this requirement.
MH: And you know, and were aware at the time, that under the amendments that had been made to the legislation to introduce MySuper, there was a requirement that all new default contributions be paid into a MySuper product?
MH: And it was a strict liability offence not to do so?
MH: Now, in the lead-up to 1 January 2014, APRA had written to all of the RSE licensees? … And then a few months after 1 January 2014, Colonial First State gave notice of a breach to APRA?
MH: And the breach was that in respect of, at that time, approximately 13,000 members of FirstChoice Personal Super, they had made a default contribution into the fund since 1 January 2014 and it had not been paid into the MySuper product?
LE: That’s right.
MH: Do you know how it could be that a trustee as large and sophisticated as Colonial First State had not identified, before 1 January 2014, which members were choice members and which members were default members?
LE: I think just the complexity at the time.
According to Michael Hodge, CFS subsequently addressed the breach problem by asking members to make an investment nomination, so CFS would no longer be required to place them in a MySuper account. Call centre operators were required to tell customers: “There has been a recent change to legislation which requires us to confirm the investment options into which you would like your superannuation contributions paid.” However, this was incorrect, as CFS could have placed them in a lower cost MySuper account.
MH: But it achieves the purpose that Colonial was setting out to achieve?
LE: Colonial was wanting to – Colonial had a view that these were choice – that these people had made a choice, and were seeking to get the investment confirmation from them.
MH: Well, they had never made a choice as to investment options, had they? … Do we agree that in no sense is choosing a fund the same thing as making a choice of investment product to invest in some specific investment option rather than the default product?
LE: I agree with that. At the time, that was the source of our contention, I guess, but yes, that is correct.
MH: But the contention by this point is done. You have given a notification of breach to APRA?
LE: Yes, but we were still of the view, as we expressed to APRA, that these people – we wanted to confirm whether these people wanted the investment selection.
MH: I’m not sure I understand that. You wanted to confirm with APRA whether they wanted the investment selection?
LE: We had confirmed with APRA that we would be calling these people to confirm the investment selection.
MH: Yes. I understand you sent this script to APRA?
LE: Yes. To APRA, yes.
MH: And APRA didn’t contact you and say, “This is obviously misleading, don’t do it”?
LE: Well, no.
MH: And advantage to Colonial of using a script like this, is that if it leads the member to make the investment choice, then you don’t have to pay new contributions into a MySuper product?
LE: They can stay where they are.
MH: They – and, again, just to be precise about this, in relation to new contributions, you don’t have to pay them into the MySuper product?
LE: That’s right.
By Friday, Michael Hodge was using this example in his grilling of the regulator, APRA, and asking why it did not take legal action for this breach of 29WA.
MH: And the issue, as we understand it, is that Colonial between 1 January 2014 and mid-April 2014 contravened 29WA at least 15,000 times?
ANZ Bank was criticised by the Commission for the methods it used to sell superannuation products through branches. ANZ admitted that customers could end up worse off if they switched their retirement savings into the bank’s product, and ANZ knew it was a risk to use bank tellers. The Head of Superannuation, Mark Pankhurst (MP) gave evidence:
MH: So it will – the bank – the employee at the bank will go through these three steps, identify various banking products that the customer might be interested in, and then say, “Now that we’ve completed the A to Z review, would you like me to provide you with some general information on ANZ Smart Choice Super which is designed to be a simple low cost way for customers to manage their superannuation.”?
MP: That is correct.
MH: But having done this A to Z review of the customer, ANZ staff then relied on their ability to sell the product under general advice rules by saying: “Please note, I can only provide general advice on this product so you need to consider if it’s right for you.”? … And this process was regarded by ANZ as being the provision of general advice only and not personal financial advice?
MP: That is correct.
MH: What does advice mean, though, in this context?
MP: In this situation, it’s really just talking about a product, and its features. And what it costs and how it works, really.
MH: Do you think it’s misleading to even call it advice?
MP: My personal view is it’s challenging – it’s a challenging topic because you’re trying to just give information and you’re needing to do it within a legal framework. And so the general advice rules is what you’re trying to play within and trying to make sure that you’re not misleading the customer, you’re not giving them anything that’s advice, you’re just simply telling them this is what the product does and that’s effectively what it is. I think that’s the intention here was simply to just make people aware of what the product did.
MH: It must be a bit more than though, isn’t it, it’s not just telling people about the product. ANZ wants people to take the product up?
MP: That’s correct, yes.
ASIC has stopped both ANZ and CBA from distributing super products through bank branches because these financial health checks make customers believe they are receiving financial advice.
The final day for superannuation
On Friday 17 August 2018, 10 days of superannuation hearings came to an end with the two main regulators, APRA and ASIC, giving evidence.
Michael Hodge’s main criticism of APRA was that it had not taken firmer action against breaches of law. For example, he quizzed Deputy Chair, Helen Rowell (HR), on why APRA had not commenced any court cases or imposed enforceable undertakings for the past decade.
MH: Would it [APRA] ever commence litigation?
HR: That is a potential action that we could take if we could not otherwise get the outcomes that we’re seeking to achieve through getting changes to practice, or even negotiating an enforceable undertaking, for example.
MH: You know one of the criticisms that has been made by the Productivity Commission in its draft report of APRA is that the behind closed doors nature of its activities is not effective for achieving what I will call general deterrence?
HR: That is an observation that has been made.
MH: And that’s an observation that APRA disagrees with?
HR: We do disagree with that observation.
MH: Do you agree that the characterisation of your activities as behind closed doors?
MH: And do you agree with this proposition: that what APRA does publicly does not identify specific conduct of specific entities?
HR: In general, that would be the case. The exception would be, for example, enforceable undertakings which would ultimately become public – which do ultimately become public.
MH: Yes, but in the case of superannuation, no corporate trustee has been required to give an enforceable undertaking, at least in the last 10 years?
The transcript of the final day can be found here, which includes a brief summary from Michael Hodge over the last few pages on what the Commissioner has learned on superannuation. For example:
“Members of superannuation funds, like most beneficiaries, are vulnerable, and in respect of superannuation, many are disengaged and disadvantaged by a lack of financial literacy. They are readily able to be taken advantage of. And the evidence, you may conclude, Commissioner, suggests that this has occurred in some cases. In most industries, the forces of competition can be relied upon to minimise improper conduct and effective regulation can be expected to address breaches of the law when breaches occur. However, for superannuation, the disengagement of members, amongst other things, may limit the effectiveness of competition.”
We can expect superannuation to feature prominently when Commissioner Hayne hands down his Interim Report by 30 September 2018.
Graham Hand is Managing Editor of Cuffelinks and Vinay Kolhatkar is Assistant Editor. The superannuation evidence contains hundreds of pages and the above is only some examples, and if any are taken out of context, that is not intentional but in the interests of brevity.